In re Barney

In re Barney (99-538); 172 Vt. 530; 772 A.2d 1074

[Filed 01-Mar-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 1999-538

                             NOVEMBER TERM, 2000


In re Grievance of Norma Barney,        }       APPEALED FROM:
Brenda Chamberlain, and                 }	
Sgt. Gloria Danforth	                }
                                        }
                                        }	Labor Relations Board
                                        }	
                                        }
                                        }	DOCKET NO. 98-65


             In the above-entitled cause, the Clerk will enter:


       This is an appeal from a decision of the Labor Relations Board finding
  that grievant, Detective  Sergeant Gloria Danforth, (FN1) was
  discriminated against by the Department of Public Safety  because she was
  suspected of making public allegations of state police impropriety.  The
  Board  sustained the grievance under Article 53 of the State Police
  Bargaining Unit contract, which protects  state employees from retaliation
  because of whistle blowing activities.  The State does not appeal the 
  finding of discrimination, but takes issue solely with the Board's
  interpretation of Article 53.  The  Board interpreted Article 53 to require
  protection against retaliation for whistle blowing whether or  not the
  State knew or merely suspected that the employee had been responsible for
  public criticism  of the Department. We affirm.  

       The Board's findings show that grievant made an internal complaint
  that false time sheets were  being signed by the station commander of the
  Bethel barracks, Lt. Bruce Lang, on behalf of a  custodial employee who was
  in the hospital.  The time sheets were sent to the Department of 
  Buildings, which actually employed the custodian.  Grievant learned of this
  from Norma Barney, a  dispatcher, and complained within the chain of
  command.  There was no action on grievant's  complaint and thereafter
  Barney notified the Department of Buildings of the false time sheets.  The 
  Department of Public Safety began an internal investigation into Lang's
  conduct.  In the meantime,  Lang was transferred to the St. Johnsbury
  barracks and Lt. Glen Cutting was named station  commander of the Bethel
  barracks.  By this time, Barney had filed a grievance alleging retaliation
  for  her complaint.  The grievance and the facts underlying the Public
  Safety investigation came to the  attention of a local newspaper, the
  Valley News, and a reporter called the barracks for comment.   Although Lt.
  Cutting did not know who had notified the press, he suspected Danforth,
  among others.  The Labor Board found that immediately after Cutting talked
  to the reporter, Danforth's working  conditions changed to her detriment,
  and that the change was motivated by Cutting's belief that she 

 

  had publicized the facts underlying the internal investigation.  In fact,
  the Labor Board found  that Danforth had not done so and that Cutting's
  actions were based on mere suspicion.

       Article 53 provides:

    A "Whistle Blower" is defined as a person covered by this
    Agreement  who makes public allegations of inefficiency or
    impropriety in  government.  No provision of this Agreement shall
    be deemed to  interfere with such an employee in the exercise of
    his or her  constitutional rights of free speech, and such person
    shall not be  discriminated against in his employment with regard
    thereto.

  The Board noted that, ordinarily, it has held that allegations of
  impropriety made within the chain of  command and not published beyond the
  employer do not come within the protection of Article 53,  but it
  recognized that this case presented a somewhat different issue from past
  cases.  While previous  cases centered on whether an allegation was public,
  publicity is not the issue here.  The Labor Board  found that it was only
  after the reporter for the Valley News telephoned Lt. Cutting and revealed 
  what she knew about the Lang investigation that Cutting took action against
  Danforth.  In other  words, it was the publicity of the charges, not the
  charges themselves, which had been pending  internally for some time, that
  prompted the retaliation. 

       The Board decided that its decision turned on the motive of the
  employer in carrying out  retaliation against the grievant based on its
  suspicion that she was a whistle blower.  Ultimately, the  Board's
  interpretation of the contract was guided by numerous federal cases that
  have held that  whistle blowing employees are protected from adverse
  actions by their employers even if the adverse  action is based on mere
  suspicion rather than actual knowledge.  See Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (Secretary of Labor not required to show
  employer's actual knowledge;  mere suspicion or belief is enough); NLRB v.
  Richie Mfg. Co., 354 F.2d 90, 98 (8th Cir. 1966)   (adverse action based on
  mere belief that terminated employee was union activist was sufficient to 
  establish violation); Brock v. Richardson, 812 F.2d 121, 125 (3d Cir. 1987)
  (erroneous belief that  employee engaged in protected activity was
  sufficient to protect employee from discharge under Fair  Labor Standards
  Act); Donovan v. Peter Zimmer America, Inc., 557 F. Supp. 642, 652 (D.S.C.
  1982)  (discharge of three employees motivated in part by employer's
  inability to pinpoint which one of  them filed OSHA complaint sufficient to
  protect all three from retaliation for protected activities).   None of the
  statutes involved in the above-cited cases had explicit protection for
  suspicion of whistle  blowing.  In each case, the court was required to
  interpret the whistle blowing provisions as  impliedly covering adverse
  action based on suspicion as well as actual knowledge.  The Board was 
  persuaded by the reasoning of these cases, as well as others, quoting from
  Reich, 

    It is beyond question that employers make employment decisions 
    based upon what they actually know to be true.  Likewise, common 
    sense and experience establish that employers also make employment 
    decisions on what they suspect or believe to be true.  It would be a

 

    strange rule, indeed, that would protect an employee discharged 
    because the employer actually knew he or she had engaged in 
    protected activity but would not protect an employee discharged 
    because the employer merely believed or suspected he or she had 
    engaged in protected activity.

  32 F.3d  at 368 (emphasis in original).

       Giving the Board the deference to which it is entitled in its
  interpretation of collective  bargaining agreements, In re Vermont State
  Employees' Assoc., 164 Vt. 214, 216, 666 A.2d 1182,  1183 (1995), we agree
  with grievant that the Board's interpretation of Article 53 is reasonable.
  The  underlying purpose of Article 53 is to permit employees to expose
  wrongdoing on the part of state  officials without fear of retaliation by
  the State.  This case presents precisely the kind of improper  reaction to
  publicity that Article 53 is intended to prohibit. The State's contention
  that where state  officials are mistaken in their belief that an employee
  has made public allegations of impropriety, the  parties to the contract
  intended no protection from retaliation, is plainly inconsistent with that 
  purpose.  

       Moreover, the State concedes that a laudable outcome of Article 53 is
  that employees will be  motivated to expose impropriety and inefficiency. 
  But, applying the State's interpretation of the  contract would have a
  chilling effect on the motivation of any employee to expose public 
  wrongdoing.  The Labor Board found that Danforth had not made the
  allegations public, but that  there was no proof of which employee, if any,
  had called the Valley News.  Under the State's theory,  therefore,
  retaliation against everyone in the barracks would not violate Article 53. 
  It is difficult to  conceive how employees will be motivated to expose
  wrongdoing if any perceived association with  public complaints, no matter
  how tenuous, will leave them subject to retaliation.  The better 
  interpretation of Article 53, if it is to have any effect at all, is that
  the State is responsible for its  improper motive and actions, whether or
  not it undertook the action upon actual facts or mere  suspicion.

       The State's reliance on In re Robins, 169 Vt. 377, 737 A.2d 370 (1999)
  is misplaced.  There,  as here, grievant alleged that his employer had
  violated the whistle blower provisions of the contract.  The Board declined
  to consider what was a long-standing internal dispute over sludge disposal 
  standards as sufficiently public to invoke the whistle blower provision. 
  Thus, our brief discussion of  the whistle blower provision was over the
  nature and degree of publicity given to the dispute.   Robins, 169 Vt. at
  385-6, 737 A.2d  at 375-76.  We agree with the Board that the instant case
  is not  about whether the allegations were public, but how the State, as
  employer, dealt with the exposure of  the allegations. 

       Finally, the State's other arguments against the Board's
  interpretation do not persuade us.  It  argues that the Board should not
  have relied on federal cases construing statutory provisions that are 
  essentially remedial in nature and subject to a broad construction.  The
  State is correct that the  interpretive task is to determine the intent of
  the parties from the language expressed.  See Hamelin 

 

  v. Simpson Paper Co., 167 Vt. 17, 19, 702 A.2d 86, 88 (1997). As we read
  the decision,  however, the Board was guided by the logic of the federal
  cases, which were closely analogous on  the facts, rather than on the
  principles of statutory construction that were applied.  We cannot 
  conclude that the distinguishing features of the federal cases undermined
  the Board's common sense  interpretation of Article 53. 



       Affirmed.







                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, District Judge
                                       Specially Assigned



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                                  Footnotes


FN1.  There were originally three grievants, two of whom settled their
  claims with the Department  prior to the conclusion of the hearing.